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Not a Slam-Dunk Case

Oct 07, 2022

On November 4, 2021, ESPN Senior Writer Baxter Holmes published an article entitled “Allegations of racism and misogyny within the Phoenix Suns: Inside Robert Sarver’s 17-year tenure as owner.” The article detailed allegations of racism and misogyny in the workplace during Robert Sarver’s tenure as the owner the Phoenix Suns of the National Basketball Association (NBA) and of the Phoenix Mercury of the Women’s National Basketball Association (WNBA).

In response to the article, the NBA retained the law firm of Wachtell, Lipton, Rosen & Katz to investigate the allegations. Some of the significant findings include the following:

  • Sarver frequently made sex-related comments and jokes in the workplace.
  • Sarver made inappropriate comments about the physical appearance of female employees.
  • Sarver engaged in inappropriate physical conduct toward male employees.
  • Sarver demeaned employees by yelling and cursing at them.
  • Other employees and executives within the Suns organization were found to have engaged in conduct that violated applicable standards.

The investigation also found that Sarver repeatedly said the N-word “when recounting the statements of others” on at least five occasions. However, the investigators also found that Sarver’s conduct was not racially motivated.

Determining a respondent’s motive requires a review and analysis of the totality of the evidence. Even with a thorough review and analysis, it can still be difficult to identify with certainty what motivated the respondent’s conduct.

In the investigations I have conducted, the respondent typically states that their motive was unrelated to race or other protected characteristics. In situations similar to the investigation involving Sarver, I weigh the evidence to determine what the motive could be. Some evidence is given greater weight than others. For example, if a respondent admits to repeatedly using a race-based slur, as was the case with Sarver, the weight of that evidence leans heavily in favor of racial animus.

However, the context of how the slur was used — whether it was directed at someone or whether the respondent used it when they were recounting an event — also must be considered. Some investigators also consider character evidence in support of or against the respondent. However, because investigations typically involve incidents and not an evaluation of people, character evidence usually does not hold great weight.

Credibility factors such as “habit/consistency” are also vital in determining motivation. For example, if during one incident the respondent uses an LGBTQ slur and their intent is ambiguous, but in another incident the respondent purposefully directed the same slur towards a person because the person identifies as LGBTQ, the evidence would suggest that the respondent’s behavior in the first incident was likely based on animus toward the LGBTQ community.

As such, while Sarver’s use of a race-based slur appears on its face to be a “slam-dunk” case of racial motivation, a closer examination of the totality of evidence could suggest otherwise. This appeared to be the case in this investigation, based on Wachtell Lipton’s conclusions.

ESPN reported that the NBA suspended Sarver for one year and fined him $10 million. On September 21, 2022, Sarver announced that he has begun the process to sell both the NBA’s Phoenix Suns and WNBA’s Phoenix Mercury franchises.


By Gorev Ahuja